Anguiano v. Life Insurance Co. of North America

232 F.R.D. 584, 2005 U.S. Dist. LEXIS 9, 2005 WL 354029
CourtDistrict Court, W.D. Texas
DecidedJanuary 3, 2005
DocketNo. Civ.A. SA-03-CA-1290-XR
StatusPublished
Cited by1 cases

This text of 232 F.R.D. 584 (Anguiano v. Life Insurance Co. of North America) is published on Counsel Stack Legal Research, covering District Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anguiano v. Life Insurance Co. of North America, 232 F.R.D. 584, 2005 U.S. Dist. LEXIS 9, 2005 WL 354029 (W.D. Tex. 2005).

Opinion

ORDER

RODRIGUEZ, District Judge.

On this date, the Court considered Plaintiffs Opposed Motion for Leave to Late Designate Experts (docket no. 21), filed December 6, and Defendant’s Response, filed December 20. Plaintiff seeks leave to file his Second Designation of Experts beyond the deadline set forth in the Court’s scheduling order. After careful consideration, the Court will GRANT the motion (docket no. 21).

This ease stems from Defendant Life Insurance Company of North America’s (LINA) denial of accidental death and dismemberment benefits to Plaintiff, who was the sole beneficiary under a policy issued to his mother. Plaintiffs mother, Yolanda Anguiano, died of a cocaine overdose, and LINA denied the claim based on an exclusion for “intentionally self-inflicted injuries.” Prior to denying Plaintiffs claim, LINA consulted an independent forensic pathologist, Dr. James Lewis, who concluded that Yolanda’s death was a suicide. Defendant provided Dr. [585]*585Lewis’s opinion to Plaintiff at the time his claim was denied and again with LINA’ initial disclosures in this ease.

Under the Court’s February 26, 2004 scheduling order, Plaintiff was required to serve his designation of testifying experts pursuant to Rule 26(a)(2)(B) by August 27, 2004. Plaintiff designated Yolanda’s treating physician, the Bexar County medical examiner, and James Garriott, a forensic toxicologist, who concluded that Yolanda’s death was accidental rather than intentional. The scheduling order deadline for LINA to file its Rule 26 disclosures was September 24. Plaintiff’s motion states that he received Defendant’s designation on October 4, and that Defendant designated Dr. Alan Hopewell in addition to Dr. Lewis and Dr. Guy Purnell, a forensic toxicologist. Defendant describes Dr. Hopewell as a licensed clinical neuropsychologist who is expected to testify concerning his evaluation of the facts and circumstances surrounding Yolanda’s death. Specifically, Defendant stated that Hopewell would create a “psychological autopsy” and “is expected to testify that Ms. Anguiano’s cocaine overdose and resulting death was intentional conduct.” Further, Hopewell is expected to testify “concerning the neurological effects of cocaine, as well as Ms. Anguiano’s mental, emotional, and physical condition during the time leading up to her death.”

Plaintiffs motion states that, at no time during the initial investigation and subsequent denial of insurance benefits did LINA hire a psychologist to perform a “psychological autopsy” and Defendant’s designation of experts was the first time Plaintiff became aware of this new testimony. Plaintiff states that he hired a forensic toxicologist upon filing this case, and that because Defendant had relied solely upon forensic toxicologists and pathologists before the designation, he could not anticipate that Defendant would hire a psychologist to perform a “psychological autopsy.” Plaintiff states that, under the scheduling order, he had only fifteen days to designate a rebuttal expert, but that he had difficulty finding an expert to perform a “psychological autopsy.” Accordingly, Plaintiff asserts, he could not locate an expert until November 19. Plaintiff eventually located Dr. Alan Berman, and provided him with the pertinent documents. Plaintiff then filed this motion for leave to designate Dr. Berman late, stating that he will provide a report when available. Plaintiff states that Dr. Berman’s testimony is crucial because Dr. Hopewell is the only psychologist who has rendered an opinion that Yolanda’s death was a suicide.

A party who, without substantial justification, fails to disclose information required by Rule 26(a) is not, unless such failure is harmless, permitted to use as evidence at a trial any witness or information not so disclosed. Fed. R. Civ. P. 37(c)(1). In lieu of exclusion, a court may impose other appropriate sanctions, such as requiring the payment of attorney’s fees. Id. The Fifth Circuit has adopted a four-part test to determine whether exclusion is an appropriate sanction: (1) the explanation by the party who failed to comply with the scheduling order; (2) the prejudice to the party opposing the designation; (3) the possibility of curing any prejudice with a continuance; and (4) the importance of the witness’s testimony. Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996, 1000 (5th Cir.1998).

As noted, Plaintiff argues that he did not know he would require a forensic psychologist or “suicidologist” until Defendant designated Dr. Hopewell in October because both sides had been utilizing only forensic toxicologists and forensic pathologists until that time. Plaintiff has designated James Garriott, a forensic toxicologist, who is expected to testify that Yolanda’s death was accidental. LINA argues that Plaintiff could not have been surprised by LINA’s designation of a forensic psychologist because “a core issue in this case is Yolanda Anguiano’s state of mind at the time of her death.” LINA contends that this has been an issue since its denial of the claim and, given the opinion of Dr. Garriott, Plaintiff does not need an additional expert to testify that her death was not suicide. LINA further argues that Plaintiff had “ample” opportunity under the scheduling order to locate a rebuttal expert and Plaintiffs contention that he simply could not find one is insufficient to justify a late desig[586]*586nation. The Court finds that Plaintiff’s explanation that he did not know of the need to designate a forensic psychologist until Defendant’s designation is reasonable. Both sides had relied on forensic toxicologists and forensic pathologists to address the issue of whether the death was accidental or intentional. LINA’s designation of Dr. Hopewell and his testimony regarding his “psychological autopsy” was the first designation of an expert who would attempt to retroactively reconstruct Yolanda’s state of mind at the time of her death.

However, whether Plaintiff had sufficient time to find and designate an expert and whether Plaintiff has offered a good explanation for missing the scheduling order deadline are more difficult questions. Plaintiff asserts that the number of experts performing “psychological autopsies” is limited.1 The Court recognizes that it often takes time to locate and consult with an expert before designating the expert. Nevertheless, the Court reminds Plaintiff that is always more prudent to move for an extension before the expiration of the deadline rather than after. See Fed. R. Civ. P. 6(b). Thus, although the Court accepts Plaintiffs explanation that he was not aware of the need for a psychological expert to perform a “psychological autopsy” until Defendant filed its designation, Plaintiff was aware of the need before the deadline expired and therefore should have moved for an extension of time before the expiration of the deadline under the scheduling order rather than waiting until after the deadline.

With regard to the prejudice to LINA, LINA asserts that it would be prejudiced if Plaintiffs late designation is allowed because Dr. Hopewell had no opportunity to review Dr. Berman’s findings and opinions prior to writing his report.

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Bluebook (online)
232 F.R.D. 584, 2005 U.S. Dist. LEXIS 9, 2005 WL 354029, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anguiano-v-life-insurance-co-of-north-america-txwd-2005.